ZKY v ZKX [2019] NSWCATAP 83

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZKY v ZKX [2019] NSWCATAP 83 Hearing dates: 05 March 2019 Date of orders: 10 April 2019 Decision date: 10 April 2019 Jurisdiction: Appeal Panel Before: M Schyvens, Deputy President K Ransome, Senior Member L Stewart, General Member Decision: (1) Leave is granted to appeal in respect of the order of the Tribunal made on 16 October 2018 which committed the management of the estate of ZKX to the NSW Trustee and Guardian.

(2) The Appeal is allowed in respect of the order of the Tribunal made on 16 October 2018 which committed the management of the estate of ZKX to the NSW Trustee and Guardian.

(3) The order made by the Tribunal on 16 October 2018 which subjected the estate of ZKX to management under the NSW Trustee and Guardian Act 2009 (NSW) is varied to provide that ZKY is appointed to the role of financial manager for ZKX and that such order be reviewed by the Tribunal within one year of the date of these orders. Catchwords: APPEAL – Guardianship Division – Financial Management – appeal from decision appointing NSW Trustee and Guardian as financial manager – denial of procedural fairness – failure to afford opportunity to be heard on matter – factual error unreasonably arrived at and clearly mistaken – fundamental misunderstanding of evidence given at hearing – consideration of conflict of interest between subject person and proposed manager Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 80(2), 81 Civil and Administrative Tribunal Regulation 2013 (NSW), cl 9 Guardianship Act 1987 (NSW), ss 4, 25M, 25N(1) NSW Trustee and Guardian Act 2009 (NSW) Cases Cited: Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286 Application by AMAM; Re SAM [2011] NSWSC 503 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: ZKY (Appellant) ZKX (First Respondent) NSW Trustee and Guardian (Second Respondent) File Number(s): AP 19/01736 Publication restriction: The publication of the name of any of the parties or other people referred to this decision including the publication of any information picture or other material that identifies them or is likely to lead to their identification is prohibited. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 16 October 2018 Before: M Tibbey, Senior Member; C M Kennedy, Senior Member; M McCalman, General Member File Number(s): 2018/00290113